What Constitutes the Tort of Negligence - Explanation and Examples

Traci Cull, Kat Kadian-Baumeyer
  • Author
    Traci Cull

    Traci Cull has been an attorney for 25 years. She has taught in multiple programs and at multiple higher education institutes in areas of paralegal law, criminal law, business, ethics, and more. She has developed a multitude of material and classes on compliance, legal textbook supplementals, bar exam review questions, and online lessons. She loves instructional and course design as well as subject matter authoring of all legal subjects. She is currently authoring a Tort Law textbook. She is a licensed mediator and compassionate trust leader and enjoys teaching about alternative dispute resolution.

  • Instructor
    Kat Kadian-Baumeyer

    Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

Learn all about the tort of negligence. Understand the legal definition of negligence, learn the elements of negligence tort, and see examples of negligence tort. Updated: 02/04/2022

Table of Contents


Legal Definition of Negligence

What is negligence? Negligence consists of carelessness. Expecting people to act reasonably and with standards of care helps to promote a decent society. When a person does something unreasonable that causes harm to someone else and does not exercise the level of care that reasonable people would have in that same situation, negligence will apply. Negligence also looks to see if a person took adequate safety measures to prevent harming others when acting.

Negligence is often seen in personal injury cases like slip and fall, automobile accidents, and cases where someone neglected to use reasonable care. So, while negligence can exist in civil as well as criminal law, this lesson focuses on the tort of negligence in unintentional wrongful conduct that results in injury.

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Tort of Negligence

The tort of negligence consists of any actions that create an unreasonable risk of harm to another person. A lot of tort law includes intent, but what if a person does not act intentionally and still injures someone, can they still be liable? Yes, and that is where negligence comes into play. The difference in general negligence and tort law negligence is the failure to use a standard of reasonable care. Being careless is being negligent, but whether that rises to the tort of negligence is a question of many factors. Mostly, the level of reasonableness is examined to determine if the tort of negligence applies. What determines reasonableness depends on the situation. Obviously, reasonableness is based on a person's knowledge and experience as well as how they perceive situations. A person cannot claim ignorance to commonly known facts to get out of liability. A person driving carelessly on ice and causing an accident and then claiming that they did not know ice was slippery would not be sufficient.

If a person has special abilities or training, then they are held to the level that others with that same training are held. If a pilot flies aircraft, then they will be held to a reasonable standard of other pilots, not other persons in general. Physical and mental characteristics also come into play with negligence. If a person is physically incapable of acting reasonable due to a physical impairment, they cannot be held to that same reasonable person standard. Mental capacity is not normally addressed in the same way. Normally, mental ability is not evaluated when determining negligence. Otherwise, people could claim that they did not know they did not do something that reasonable people do to get out of the damages.

There are two types of negligence in tort law. One is that negligence is a state of mind. This refers to how a person commits a particular tort like negligence trespass, or negligent defamation. This type looks more to a subjective definition of negligence. The other is the action itself. It is the conduct itself that involves risk. This type is more objective and is a separate negligence tort.


Elements of Negligence Tort

In order for a plaintiff to establish a case of negligence in tort law, they must establish the four required elements. The required elements consist of:

  1. existence of a legal duty
  2. breach of that duty
  3. that breach was the proximate and actual cause of the injuries
  4. damages

Existence of a legal duty means that there is a legal obligation for a person to act reasonably because of their relationship to another. The issue often comes down to determining who owes a duty to whom. Is there a type of connection between the parties that implies a duty? Is there a physical or relational proximity of the parties? This does not mean that a person must know another or have an actual relationship with them for there to exist a duty. A driver owes a duty to a pedestrian to use reasonable care and not strike them. There are countless types of relationships and therefore, countless types of duty owed to others. If a defendant took part in creating the risk that harmed the plaintiff, if they voluntarily offered to protect the plaintiff, or they knew that their conduct would harm the plaintiff they would have a duty to act. One example would be a possessor of land owing a duty of care to trespassers. In general, there is no duty of care owed to trespassers on land since they are uninvited.

Breach of duty occurs when there is an established duty and there is a failure to use reasonable care to fulfill that duty. Again, the greatest level of care in every situation is not required, just a reasonable one. The level of care is often determined by looking at the obviousness of the risk involved. If it was reasonably foreseeable that the act could cause an injury, and a reasonable person would have acted that way, then not taking precautions could result in a breach of duty. An example of a breach of duty would be a driver breaching the duty of care to a pedestrian and striking them.

Proximate cause is when the defendant's negligence directly caused the plaintiff's injuries. Was the plaintiff getting injured a reasonably foreseeable consequence of defendant's action? An example of proximate cause would be that a person carelessly trimmed trees in their yard. Unbeknownst to them, a large limb fell into the neighbor's yard. The neighbor then went into the yard at night and tripped over the limb and then rolled down the hill and hit their head on a slab of concrete. Was the defendant's action of cutting the tree the proximate cause of the plaintiff's injury? Most likely yes. If there were intervening causes that caused it then it would probably not be the proximate cause.

Damages is what harm was suffered or what property damage occurred from the defendant's negligence. If there are no provable damages, then the defendant cannot be liable for legal negligence. The damages must be owed to the person that was owed the duty of care. Damages can include nominal damages, compensatory damages, and punitive damages. Damages may include many things such as pain and suffering, lost earnings, shortened life expectancy, and any actual damages.

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Frequently Asked Questions

What is negligence tort?

Negligence consists of any actions that create an unreasonable risk of harm to another person. Mostly, the level of reasonableness is examined to determine if the tort of negligence applies.

What is an example of a negligent tort?

An example of a negligence tort would be a company failing to maintain their rides and a patron getting injured on the ride. They have a duty to the invitee, they breached the duty by not maintaining the equipment, the ride malfunction was a proximate cause of the plaintiff's injuries, and the plaintiff sustained damages.

What are the 4 elements of negligence?

In order for a plaintiff to establish a case of negligence in tort law, they must establish four required elements. The required elements consist of: existence of a legal duty,

breach of that duty, that breach was the proximate and actual cause of the injuries, and damages

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